Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 February 2007,
in the following composition:
Mr Slim Aloulou (Tunisia), Chairman
Mr Philippe Diallo (France), member
Mr Essa M. Saleh al Housani (United Arab Emirates), member
Mr Michele Colucci (Italy), member
Mr Mick McGuire (England), member
on the claim presented by the player
X, XX,
as Claimant,
against the club
Y, (formely aY), YY,
as Respondent,
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 4 February 2005, the player, X (hereinafter: the Claimant) and the club, aY
(hereinafter: the Respondent) entered into a contract of employment for a period of 10
months, i.e. from 1 March 2005 to 5 January 2006. The appendix to this contract of
employment provides for the following:
For the second half of the 2004/2005 championship the player is to receive a total of USD
11,500 in 5 (five) instalments:
- USD 2,500 on signing the contract and the rest of a total of USD 6,000 on 25 February
2005,
On 25 March 2005: USD 1,300,
On 25 April 2005: USD 1,300,
On 25 May 2005: USD 1,300,
On 25 June 2005: USD 1,600.
- For the 2005/2006 competitive season the player is to receive USD 11,500:
On 25 July 2005: USD 6,000,
On 25 August 2005: USD 1,300,
On 25 September 2005: USD 1,300,
Am 25 October 2005: USD 1,300,
On 25 November 2005: USD 1,600.
For each goal: USD 300.
In addition, it was agreed in the final paragraph of the appendix that in the event of the
club being more than 15 days in arrears from the 25th of the relevant month with respect
to the aforementioned payments, the player would be entitled to terminate the
contractual relationship.
2.
On 22 December 2005, the Claimant lodged a claim in front of FIFA for breach of contract
by the Respondent. The Claimant submitted that the club owed him salary and match
bonuses in the amount of USD 20,500. The Claimant alleged that the contract of
employment concluded on 4 February 2005 amounted to a total of USD 23,000. Since
signing the contract he had received a mere USD 2,500.
3.
Furthermore, according to the Claimant, the Respondent had failed to obtain a work
permit or a visa for him. Accordingly, the Claimant had had to leave YY on 15 April 2005
to avoid breaking law of YY.
4.
The Claimant also emphasised that pursuant to the appendix to the contract of
employment, the contract would be considered dissolved at the expense of the club and
the player would be free to move on if the club failed to pay any amount that had fallen
due.
5.
The Claimant also stated that the then Football Association of XX had written to the
Football Federation of YY on 8 June 2005 in an attempt to find an amicable solution. This
letter had apparently gone unanswered, however. Also, the Claimant maintained that
none of the overdue amounts had been received until 22 December 2005.
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Player X, XX / Club Y (formerly aY), YY
6.
On 6 February, 24 March and 2 May 2006, FIFA requested the Respondent to comment on
the player's claim. These letters went unanswered.
7.
By letter dated 19 May 2006, FIFA requested the Claimant to submit a copy of the original
employment contract concluded with the Respondent. The Claimant had presented only a
version in the language of XX of the original written in YY and an English translation of
this version written in the language of XX by that stage.
8.
By letter dated 25 May 2006, the then Football Association of XX submitted a letter from
the Claimant dated 22 May 2006 in which he repeated his claim for the payment of
USD 20,500. The Claimant also sent FIFA the requested original contract of employment.
9.
In replying to FIFA's letter dated 19 May 2006, the Football Federation of YY forwarded a
letter from the club, Y (hereinafter: the Successor of the Respondent), dated 23 May 2006.
In this letter the Successor of the Respondent stated that an original of the contract of
employment concluded with the Claimant could not be submitted as the Respondent no
longer existed. The Successor of the Respondent furthermore alleged not having access to
the documents of the former club and was also not obliged to pay the player anything, as
the Successor of the Respondent had not entered into an emplyoment contract with the
player.
10.
By letter dated 7 June 2006, the Football Federation of YY informed FIFA that it had
resolved to exclude the Respondent from its organisation on 28 July 2005. The Successor
of the Respondent had been accepted as a new member at the same time. Subsequently,
by letter dated 16 August 2005, the Football Federation of YY had informed the Successor
of the Respondent that it had to assume the debts of the Respondent being its legal
successor. According to a decision taken by the Executive Committee of the Football
Federation of YY, the Successor of the Respondent was therefore responsible for the
debts of the Respondent.
11.
By letters dated 15 June and 17 July 2006, FIFA requested the Successor of the Respondent
to comment on the player's claim. These letters went unanswered.
12.
By letter dated 15 August 2006, FIFA asked the Claimant to inform it whether he had
found another club for which to play football in the period March 2005 to January 2006
and, in the affirmative, to submit a copy of the relevant contract of employment. This
letter went unanswered.
13.
Originally, the Claimant also applied for the contractual relationship with the Respondent
to be declared dissolved at the expense of the latter and for him to be released. When
informed by FIFA that the contract entered into with the Respondent had expired on 5
January 2006 in any case, the Claimant stated that his claim was limited to financial
aspects. At the beginning of the proceedings, the Claimant also stated that he had not
played for any other club because he had signed an 11-month contract with the
Respondent on 4 February 2005.
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Player X, XX / Club Y (formerly aY), YY
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the matter at
stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (DRC).
The present matter was submitted to FIFA on 22 December 2005. As a consequence, the
Chamber concluded that the revised Rules Governing Procedures (edition 2005) on matters
pending before the decision-making bodies of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light
of articles 22 to 24 of the current version of the Regulations for the Status and Transfer of
Players (edition 2005). In accordance with art. 24 par. 1 in connection with art. 22 (d) of
the aforementioned Regulations, the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide on
the present litigation involving a player from XX and a club from YY regarding
contractual disputes in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the Regulations for
the Status and Transfer of Players should be applicable as to the substance of the matter.
In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations for the Status and Transfer of Players (edition 2005) and, on the other hand,
to the fact that the relevant contract at the basis of the present dispute was signed in
February 2005 and the claim was lodged at FIFA on 22 December 2005. In view of the
aforementioned, the Chamber concluded that the current FIFA Regulations for the Status
and Transfer of Players (edition 2005, hereinafter: the Regulations) are applicable to the
case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members started by
acknowledging the above-mentioned facts as well as all the further documentation
contained in the file.
6.
To that regard, first of all, the members of the Chamber acknowledged that the Claimant
and the Respondent signed an employment contract in February 2005 that was due to run
for a period of 10 months, i.e. with effect from 1 March 2005 until 5 January 2006.
7.
As a next step, the members of the Chamber acknowledged that, according to the
information put forward by the Football Federation of YY, the Respondent was no longer
existing. In this context, the members particularly noted that the Successor of the
Respondent, after its affiliation to the Football Federation of YY at the end of July 2005,
was declared by the latter responsible to take over all rights and debts of the Respondent.
8.
On account of the above, the members of the Chamber unanimously decided that the
Successor of the Respondent must be considered as the club that entered into the
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Player X, XX / Club Y (formerly aY), YY
contractual relationship with the Claimant via the employment contract concluded on 4
February 2005. In other words, the members decided that the Successor of the Respondent
must be considered as liable for any commitment entered into by the Respondent towards
the Claimant based on the aforementioned employment contract and will also be referred
to as “the Respondent” from now on.
9.
Once the obligation of the Successor of the Respondent to take over any debt possibly
due by the Respondent towards the Claimant had been established, the members of the
Chamber noted that the Claimant alleged having received by the Respondent monies in
the total amount of USD 2,500 only and, therefore, claimed the remaining contractual
value in the sense of the employment contract concluded with the Respondent on 4
February 2005, i.e. USD 20,500 (USD 23,000 ./. USD 2,500).
10.
To that regard, the members of the Chamber also took into consideration that according
to the allegations made by the Claimant, the Respondent did not provide the Claimant
with the necessary work permit or visa in order to enable him to stay in YY. In particular,
the Chamber acknowledged that the Claimant therefore alleged having had to leave YY
on 15 April 2005 in order to not break law of YY.
11.
In addition to that, the Chamber noted that, on the one hand, the Respondent never took
position to the complaint lodged by the player and, on the other hand, the Successor of
the Respondent limited its position to the argument of not being obliged to pay the
Claimant the amounts requested as it never entered into an employment contract with
the latter.
12.
With regard to the fact that the Respondent, prior to its exclusion of the Football
Federation of YY, never took position to the complaint lodged by the Claimant, the
members decided that the said party renounced its right to defence and tacitly accepted
all the allegations made by the Claimant.
13.
Moreover, and with regard to the fact that the Successor of the Respondent in May 2006
maintained not being obliged to pay anything to the Claimant as it never entered into an
employment contract with the Claimant, the Chamber referred to its previous
considerations mentioned under point II., 8. above. In other words, the Chamber once
again highlighted that the Successor of the Respondent must be considered as the club
that celebrated the employment contract with the player in question on 4 February 2005
due to the decision taken by the Football Federation of YY and, therefore, as the party
liable for any obligation towards the Claimant resulting from the mentioned employment
contract.
14.
Thereto, the Chamber also noted that the Successor of the Respondent never presented its
further comments to the Claimant’s request for monies in the total amount of USD 20,500
despite having been asked to do so by FIFA in written form on 15 June or 17 July 2006.
The Chamber unanimously decided that, in this way, the Successor of the Respondent, in
the end, renounced its right to defence and also tacitly accepted the allegations of the
Claimant.
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Player X, XX / Club Y (formerly aY), YY
15.
On account of the above, the members of the Chamber concluded that the Claimant
indeed only received monies amounting to USD 2,500 since the signing of the relevant
employment contract.
16.
In continuation, the Chamber acknowledged that the Claimant claimed the remaining
contract value, i.e. USD 20,500, as outstanding salaries and match bonuses.
17.
To that regard, the members of the Chamber deemed it important to underline again that
the Claimant, as per his own declaration, left YY on 15 April 2005.
18.
Consequently, the Chamber concluded that from the total amount of monies that the
Claimant requested (i.e. USD 20,500), only USD 4,800 were fallen due prior to his
departure from YY, namely the salary payment of USD 3,500 (i.e. USD 6,000 ./. USD 2,500)
fallen due on 25 February 2005 as well as the salary payment amounting to USD 1,300
fallen due on 25 March 2005. The Chamber particularly underlined that according to the
employment contract concluded on 4 February 2005, the remaining salary payments
claimed by the Claimant (i.e. USD 15,700) became due after the player’s departure from
YY, i.e. after 15 April 2005.
19.
In this context, the Chamber once again noted that neither the Respondent nor the
Successor of the Respondent presented justifications for the non-payment of the amounts
fallen due to the player during his stay in YY.
20.
Therefore, the Chamber decided that the Claimant is entitled to receive all salary
payments that became due until his departure from YY (i.e. 15 April 2005), in other words,
that he is entitled to receive monies in the total amount of USD 4,800 (USD 3,500 + USD
1,300).
21.
As a next step, and taking into account that the Respondent was already behind schedule
with two salary payments in the amount of USD 4,800 at the moment of the Claimant’s
departure, the members decided that the Respondent was in a persistent failure to pay
the Claimant his salaries without just cause, circumstance that must be considered as a
breach of an employment contract. In particular, the members underlined that the
Respondent or the Successor of the Respondent did not have any reason justifying the
non-payment of the salary payments in accordance with the relevant employment
contract or, at least, did not provide for any reasons which might have given reason not to
pay the salaries to the Claimant.
22.
As a result of the above, the Chamber stated that the behaviour of the Respondent has to
be considered as a breach of contract without just cause.
23.
In consequence, and in application of art. 17 of the Regulations, which foresees that in
case of a breach of contract without just cause, the party in breach must pay
compensation to the other party, the members had to deliberate whether the Respondent
is accountable for outstanding payments and compensation towards the Claimant.
24.
As far as the responsibility of the Successor of the Respondent regarding outstanding
salary payments is concerned, the members referred to their considerations taken under
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Player X, XX / Club Y (formerly aY), YY
II., points 18 to 20 and reiterated that the Successor of the Respondent has to pay the
Claimant outstanding salaries in the total amount of USD 4,800.
25.
As far as compensation for breach of contract is concerned, the deciding body deemed it
appropriate to compensate the Claimant with the amount of USD 8,000, representing
approximately 50% of the remaining contractual value of the employment contract
concluded on 4 February 2005. In this respect, the members particularly highlighted the
fact that the Claimant did not search another club to play for after having left YY and
decided that this circumstance must be held against the Claimant in the sense that he is
not entitled to the whole remaining contractual value of the employment contract
concluded at the beginning of February 2005 but only to, as mentioned before, USD
8,000.
26.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has to pay to
the Claimant the amount of USD 4,800 representing outstanding salary payments fallen
due until 15 April 2005 plus USD 8,000 as compensation for breach of contract without
just cause. In total, the Respondent has to pay the Claimant the amount of USD 12,800.
***
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Player X, XX / Club Y (formerly aY), YY
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay to the Claimant, X, the amount of USD 12,800.
3.
The amount due to the Claimant has to be paid by the Respondent within 30 days as
from the date of notification of this decision.
4.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per annum shall apply and the present matter will be submitted to
the FIFA’s Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
5.
The Claimant is directed to inform the Respondent immediately of the account
number to which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
6.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the
CAS directly within 21 days of receiving notification of this decision and has to contain
all elements in accordance with point 2 of the directives issued by the CAS, copy of
which we enclose hereto. Within another 10 days following the expiry of the time
limit for the filing of the statement of appeal, the appellant shall file with the CAS a
brief stating the facts and legal arguments giving rise to the appeal (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Avenue de Beaumont 2
CH-1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl. CAS directives
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Player X, XX / Club Y (formerly aY), YY